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Court of Criminal Appeal 22 February 2007

Friend v Regina

[2007] NSWCCA 41

Homicide

Citation: Friend v Regina [2007] NSWCCA 41
Court: New South Wales Court of Criminal Appeal
Date: 22 February 2007
Judge(s): Spigelman CJ, Sully J, Hislop J

Background

The appellant had been in a de facto relationship with the deceased for approximately four years. In the early hours of 18 January 2002, the deceased was shot once in the back of the head at point-blank range while asleep in the couple's bed at their home in West Hoxton. The murder weapon, likely a 12-gauge shotgun, was never recovered.

The appellant was jointly tried with a co-accused, Philip Grubb, before Adams J and a jury in the Supreme Court. The Crown alleged that Grubb fired the fatal shot and that the appellant was present at the premises and aided and abetted him. The jury convicted the appellant of murder but could not reach a verdict in respect of Grubb, who was subsequently re-tried twice without the jury reaching agreement.

The appellant appealed her conviction on five grounds, contending variously that the verdict was unreasonable, that evidentiary and directions errors had occurred, and that she should not have been tried jointly with her co-accused.

  • Whether the jury's verdict of guilty was unreasonable or inconsistent with the evidence, given the wholly circumstantial Crown case and the absence of any physical evidence directly linking the appellant to the shooting
  • Whether the trial judge erred in admitting the previous consistent statements of a key witness, Mr Dupon, a neighbour who gave significant evidence at trial
  • Whether the trial judge erred in failing to give a "Shepherd direction" in relation to Mr Dupon's evidence, requiring the jury to be satisfied beyond reasonable doubt of that evidence before returning a guilty verdict
  • Whether the trial judge erred in refusing to order that the appellant be tried separately from her co-accused
  • Whether the trial judge erred in directing the jury that "there may have been witnesses in this case, for all we know, who had a very adverse view about the accused," in the context of the good character direction

Decision

On Ground 1, the Court found that the jury's verdict was not unreasonable. Although the Crown case was entirely circumstantial and no physical evidence directly connected the appellant to the shooting, the Court assessed the whole of the evidence and concluded that a jury acting reasonably could have been satisfied beyond reasonable doubt of the appellant's guilt.

On Ground 2, the Court rejected the contention that the trial judge erred in admitting Mr Dupon's previous consistent statements. The Court considered the circumstances in which those statements were made and found no error in their admission under the Evidence Act 1995 (NSW).

On Ground 3, the Court found no error in the failure to give a Shepherd-style direction in relation to Mr Dupon's evidence. This ground was not made out on the facts and circumstances of the trial.

On Grounds 4 and 5, the Court similarly found no error. The refusal to order a separate trial was held to be appropriate, and the impugned passage in the summing-up on good character, read in context alongside the trial judge's full directions on that topic, was found not to have diminished the value of the good character evidence to the appellant. The Court noted that the appellant's counsel at trial had not sought any re-direction on the point, which was consistent with the passage being unobjectionable when read as a whole.

Orders Made

  • Appeal against conviction dismissed

Key Takeaways

  • In dismissing all five grounds of appeal, the Court of Criminal Appeal confirmed that a murder conviction can stand on a wholly circumstantial case even where there is a complete absence of physical evidence directly linking the accused to the offence, provided the jury could reasonably have been satisfied of guilt beyond reasonable doubt.
  • Previous consistent statements of a witness may be admissible where the relevant conditions under the Evidence Act 1995 (NSW) are satisfied; their admission does not automatically constitute error.
  • A Shepherd direction (requiring the jury to be satisfied beyond reasonable doubt of an intermediate factual finding before using it to support a verdict) is not mandatory in every case involving a significant witness; its necessity depends on the circumstances of the particular trial.
  • No error was established in the refusal to sever the appellant's trial from that of her co-accused, even where the co-accused was ultimately not convicted.
  • A good character direction is assessed in its entirety rather than by isolated passages; the absence of a request for re-direction by experienced trial counsel was treated as a relevant consideration in assessing whether any impugned portion caused a miscarriage of justice.

Legislation and Cases Referenced

Legislation:
- Evidence Act 1995 (NSW)

Cases:
- R v Micallef (2002) 136 A Crim R 127
- M v The Queen (1994) 181 CLR 487
- MFA v The Queen (2002) 213 CLR 606
- de Gruchy v The Queen (2002) 211 CLR 85
- DBG (2002) 133 A Crim R 227
- Minniti v The Queen (2006) 159 A Crim R 394
- Regina v Middis (NSWSC, unreported, 17 March 1991)
- Shepherd v The Queen (1990) 170 CLR 573